Water rights may be sold

South Routt rancher has plan to sell $5M rights to Eagle County

A South Routt rancher has proposed a $5 million sale of water use rights to Eagle County water suppliers.

The water, which could serve up to 10,000 people in the Vail Valley and Eagle County, would come from leftover irrigation water from the Yampa River used by Kirk Shiner of Flattops Water Company.

Today is the deadline for opposition to the project to be filed with the Division 5 Water Court, which serves the Colorado River Basin. As of Monday afternoon, seven entities had filed: the Colorado River Water Conservation Board, the city of Aurora, Xcel Energy, the town of Minturn, Tri-State Generation, Table Rock Properties and the Upper Yampa Water Conservancy District.

Filers do not have to oppose the project to file, but could just want to receive information on the case.

Glenn Porzak, a water lawyer based in Boulder who is representing Shiner and the Eagle County water suppliers, said the proposal should not be controversial, because the water in the project already is lost to the Yampa River basin.

"The nice thing about this application is that this allows irrigation to continue," Porzak said. "It allows a rancher to get some money off a second use of water that, right now, is just being wasted."

Typically when water is used, there are leftovers. Irrigating fields consumes about one-third of the water that is applied to the fields, while cities and towns use about 5 percent of the water that enters their systems, according to recent water studies.

Water that returns to the streams and rivers can then be claimed by another junior user.

But Shiner has a unique situation. His Toponas ranches straddle the dividing line between the Colorado River basin and the Yampa River basin.

When Shiner uses water to irrigate his land, much of the water that isn't soaked up by hay fields seeps into Egeria Creek, which then eventually flows into the Colorado River. That's what it has done for about 70 years, Porzak said.

The water cannot get back to the Yampa River basin, and because it would not exist in the Colorado River basin if it weren't for Shiner's irrigation practices, Colorado law says that Shiner has the right to use and reuse that water to extinction.

In a July 2003 proposal filed with the Division 5 Water Court, Shiner and both the Eagle River Water and Sanitation District and the Upper Eagle Regional Water Authority presented a plan to quantify how much water is left over from Shiner's irrigation, then claim and sell rights of use of that water to the two Eagle County entities and allow storage facilities to store the water for domestic purposes.

The upper limit of water sold in the proposed transaction would be about 1,250 acre-feet, Porzak said. One acre-foot is enough for one or two families of four for a year, he said.

Each acre-foot would be sold for $4,250, for a one-time payment totalling no more than $5.3 million, Porzak said.

The Upper Yampa Water Conservancy District, which built and owns Yamcolo Reservoir and Stagecoach Reservoir, filed a similar case eight years ago to quantify water from Yamcolo that ends up in the Colorado River basin.

With the court-approved methodology, the conservancy district has 145 acre-feet of water rights of return flow from Yamcolo that it also could sell to Eagle County. And if the demand is there, the district might do just that, said John Fetcher, manager and secretary for the district.

"We might join up with Shiner because once this water is gone to Egeria (Creek), really nobody else can use it," Fetcher said.

Tom Sharp, a water lawyer in Steamboat Springs who represents the conservancy district, said the district filed friendly opposition to the case so that it can keep tabs on what the Water Court decides.

The conservancy district wants to be sure that Shiner's water that has historically flowed back to the Yampa River basin continues to do so so that the district keeps its 145 acre-feet of exported water and that there aren't other problems with the project that turn up after an engineering review takes place, Sharp said.

The Yampa River already produces much more water than its users consume, Sharp said, because there is not a lot of storage on the river. Of the 1.2 million acre-feet of water the river produces each year, 10 percent is used and the rest flows to Utah.

One potentially controversial aspect of Shiner's application is that it asks for permission to divert all of the return flows that would enter the Colorado River basin if land was not irrigated during dry years, Sharp said. According to the application, Shiner could put the water directly into storage during dry years and then release it to the Eagle river entities.

Shiner could argue that his water would be lost to the Yampa River anyway, so it wouldn't matter if it's stored first, but opposers could then argue that if he wasn't irrigating in the first place, the water wouldn't be lost to the river basin.

Any worry that people might have of a transmountain diversion taking place through the project -- meaning any concerns that the Yampa River water in question would go to thirsty Front Range cities -- is unfounded, Porzak said.

"There's no way Vail and all of those districts are going to sell the water," Porzak said. "They need it."